from the Circuit Court of McHenry County. No. 12-CF-163.
Honorable Sharon L. Prather, Judge, Presiding.
J. Pelletier, Thomas A. Lilien, and Christopher McCoy, all of
State Appellate Defender's Office, of Elgin, for
A. Bianchi, State's Attorney, of Woodstock (Lawrence M.
Bauer and Marshall M. Stevens, both of State's Attorneys
Appellate Prosecutor's Office, of counsel), for the
and Spence, Justices concurred in the judgment and opinion.
SCHOSTOK, PRESIDING JUSTICE.
[¶1] Defendant, Ismael G. Luna, pleaded
guilty in the circuit court of McHenry County to a single
count of aggravated driving under the influence of alcohol
(DUI) (625 ILCS 5/11-501(d)(1)(A) (West 2010)). In exchange
for defendant's plea, the State nol-prossed other
charges. However, there was no agreement as to
defendant's sentence. The trial court sentenced defendant
to an eight-year prison term. Through counsel, defendant
moved for reconsideration of his sentence. The trial court
denied the motion. On appeal, we granted defendant's
motion for a remand to afford him the opportunity to file a
new motion in accordance with Illinois Supreme Court Rule
604(d) (eff. Feb. 6, 2013). We did so because defendant's
attorney failed to file the written certificate required by
that rule. Our order directed the trial court to " hear
and resolve [the] motion only after defendant's attorney
files a certificate in strict compliance with Rule
604(d)." People v. Luna, No. 2-13-1035 (July 8,
2014) (minute order). On remand, defendant's attorney
filed a Rule 604(d) certificate and stood on the previously
filed motion to reconsider defendant's sentence.
Defendant's attorney offered no new or additional
argument on that motion. The trial court again denied the
motion. In this appeal, defendant argues that the Rule 604(d)
certificate that defense counsel filed on remand did not
strictly comply with that rule. Thus, defendant asks that we
remand the case once more. We affirm.
[¶2] Rule 604(d) provides, in pertinent
part, as follows:
" No appeal from a judgment entered upon a plea of
guilty shall be taken unless the defendant, within 30 days of
the date on which sentence is imposed, files in the trial
court a motion to reconsider the sentence, if only the
sentence is being challenged, or, if the plea is being
challenged, a motion to withdraw the plea of guilty and
vacate the judgment. *** The trial court shall *** determine
whether the defendant is represented by counsel, and if the
defendant is indigent and desires counsel, the trial court
shall appoint counsel. *** The defendant's attorney shall
file with the trial court a certificate stating that the
attorney has consulted with the defendant either by mail or
in person to ascertain defendant's contentions of error
in the sentence or the entry of the plea of guilty, has
examined the trial court file and report of proceedings of
the plea of guilty, and has made any amendments to the motion
necessary for adequate presentation of any defects in those
proceedings." Ill. S.Ct. R. 604(d) (eff. Feb. 6, 2013).
well established that the attorney's certificate must
strictly comply with the requirements of Rule 604(d). See
People v. Janes, 158 Ill.2d 27, 35, 630 N.E.2d 790,
196 Ill.Dec. 625 (1994). If the certificate does not satisfy
this standard, a reviewing court must remand the case to the
trial court for proceedings that strictly comply with Rule
604(d). Id. at 33.
[¶3] Here, in the certificate filed on
remand following the earlier appeal, defendant's attorney
stated, " I have consulted with the Defendant via
written correspondence and telephone to ascertain his
contentions of error, have reviewed the court file and report
of proceedings of the guilty plea and sentencing, and have
made any amendments to the motion to reconsider sentence
necessary to adequately preserve any defects in those
proceedings." Defendant argues that the certificate is
deficient because, although counsel stated that he consulted
with him to ascertain his " contentions of error,"
counsel did not expressly state that he ascertained
defendant's contentions of error in defendant's
sentence or the entry of his guilty plea.
[¶4] Defendant relies primarily on our
supreme court's decision in People v.
Tousignant, 2014 IL 115329, 378 Ill.Dec. 796, 5 N.E.3d
176. In that case, the defendant moved for reconsideration of
the sentence imposed after the acceptance of his guilty plea.
Defense counsel filed a Rule 604(d) certificate stating that
counsel " 'consulted with the Defendant in person to
ascertain Defendant's contentions of error in the
sentence imposed herein.'" Id. ¶ 35.
The certificate was silent on the question of whether counsel
ascertained the defendant's contentions of error in the
entry of the guilty plea. Stressing that Rule 604(d) states
that counsel must certify that he or she consulted with the
defendant to " ascertain defendant's contentions of
error in the sentence or the entry of the plea of
guilty" (emphasis added) (Ill. S.Ct. R. 604(d) (eff.
Feb. 6, 2013)), the State argued that the use of the
disjunctive " or" signified that counsel was not
required to consult with the defendant both about
sentencing errors and about errors relating to the entry of
the defendant's plea. Tousignant, 2014 IL
115329, ¶ 9. Rather, in the State's view, the
subject of the consultation depended on the type of postplea
motion filed. Id. ¶ 10. The Tousignant
court disagreed. The court observed:
" 'It is the settled law of this State that the
words " or" and " and" will not be given
their literal meaning ...